• Yes anyone can make a will but the following applies:
• they must have legal capacity and good memory and understanding; and
• they must be over 18 years old.
• Good memory and understanding means among other things that they must not suffering from substantial dementia or a cognitive impairment that affects their judgement and understanding.

• A trust could be described as an obligation to another person or people. It is created by a trust deed during a person’s lifetime. It usually involves assets being set aside for the benefit of others. 
• A trust consists of at least one trustee and at least one beneficiary (a person who receives a benefit from the trust). 
• The trustee is the legal owner of the trust’s property and they are legally obliged to hold the property for the benefit of all beneficiaries according to the terms of the trust deed. 
• On the other hand a testamentary trust is created by a will and does not come into effect until the date of death. A testamentary trust is typically set up for the benefit of minor or disabled children of the testator or a surviving spouse.

• The general rule of thumb is that a will should be reviewed every 3 years and if necessary it should be updated. 
• However if a life changing event occurs in the testator’s life the will should be updated accordingly. Life changing events include: 
• a beneficiary or executor dying;
• a new beneficiary being born for example a child or grandchild; 
• a specific gift is sold; or
• the testator marries. 
• Importantly a binding death nomination for a superannuation fund or life insurance policy expires every three years. A new binding death nomination will need to be made at that time. This time may be used as a prompt to check the currency of a will as well.

• No. A person who is a beneficiary under a will who also witnesses the will is known as an ‘interested witness.’ 
• If a beneficiary witnesses a will they will forfeit their gift under the will. 
• Even if a spouse of a beneficiary under the will witnesses the will the beneficiary will forfeit their gift.

• Yes. It is common for a surviving spouse to be nominated both as executor and the sole beneficiary under a will.

• If a property is owned as a joint tenancy with a new spouse when the testator dies their interest in the property evaporates at the moment of their death. The surviving joint tenant then becomes the sole legal owner of the property.
• This type of interest in a property cannot be left to a beneficiary in a will because the asset does not belong to the testator anymore and does not form part of their estate.
• By contrast a property owned as a tenant in common with a new spouse is treated differently. The portion of the property owned by the testator does not evaporate at death. It can be left in their will to a beneficiary such as a child from a previous relationship.

• Marriage automatically revokes an existing will unless the will contains a clause that contemplates the marriage.

• Unless the will states otherwise a grant of divorce revokes any parts of the will that favour a person’s former spouse. There are some minor exceptions to these rules but generally the parts of a will that will be revoked include: 
• gifts to the spouse; and
• appointment as:
•  trustee; 
• guardian; or 
• executor. 
• Any gift to the spouse will be treated as though the spouse predeceased the testator.
• Importantly mere separation from a person’s spouse will not affect the validity of a will. 
• If you separate from your spouse and do not want them to inherit anything from you a new will should be made as soon as possible.
• If you obtain a divorce it is good practice to update your will so that it is clear who you want the parts of your estate that would previously have gone to your ex-spouse to go to.

• A search will be made for your will. This will involve an initial physical search of your home and papers. 
• After that any known dealings with solicitors will be investigated by relying on your family’s recollections. The public trustee of your state or territory will be checked. 
• Some states and territories offer advertising facilities for lost wills. These may be relied on in addition to advertising in local and national newspapers.
• If your original will is lost but your witnesses can provide evidence that they saw you sign the will on a particular day a copy of the will may be submitted to the court as an informal will in some states and territories. 
• It is not good practice to rely on an informal will as the court may still reject it.
• Newcastle Legal can assist you by placing your original will with us for safekeeping. 

• Your will is your business and you are not required to give anyone a copy. 
• However there are benefits to giving someone a copy especially if you have funeral and body disposal instructions in the will.
• Often a person’s will is not read until after their funeral so if the will contains specific instructions about the type of funeral or method of disposal for your body then it may be too late by the time the instructions come to light.
• Also by giving your executor a copy of the will they are aware of your wishes in advance and can judge whether they are willing or able to be your executor. For example they may suffer from ill health or live some distance from you and know that they will not be able to perform their executorial duties. 

• An executor’s role is very important. You must choose someone you trust and who you believe is responsible and will act in accordance with your instructions.
• Ideally the person should be about your age or younger so there is more likelihood that they will still be alive when you die.
• Preferably two executors should be chosen with either executor being able to act on their own if the other is unwilling or unable to act as your executor. 
• It is also a good idea to have at least one back-up executor in the event that your chosen executor or executors cannot act.

• Intestacy occurs when a person who owns an estate dies without leaving a valid will. 
• An estate includes all real and personal property remaining after payment of debts and funeral expenses.

• If you died without first making a valid will you will be referred to as an 'intestate'. 
• This is distinct from a person who dies with a valid will who is referred to as a 'testator'.

• A spouse is defined as a person who:

1. was married to the deceased person immediately before their death; or
2. was in a domestic partnership with them immediately before their death.

• A domestic partnership is defined under the law as either a:

1. registered relationship within the meaning of the Relationships Register Act 2010; or
2. a de facto relationship that has been in existence for a continuous period of 2 years or resulted in the birth of a child.

• A reference to ‘issue’ refers to your children and includes your lineal descendants such as your natural and adopted children and their children and so on.
• Issue does not include stepchildren who are only related to you through marriage.

• An enduring guardianship is a formal legal document allowing another person to make decisions about your accommodation, health, medical and dental treatment and other personal services. 
• An enduring guardian cannot make decisions relating to your financial matters.
• While an enduring guardian holds many decision-making powers they cannot make or alter your will. 

• Under section 6E of the Guardianship At 1987 (NSW) a person validly appointed as an enduring guardian can:

1. decide the place where you live;
2. decide the types of health care you receive;
3. decide and approve any personal services you may require; and 
4. consent to any medical or dental treatment that is required.

• Under a power of attorney you formally give authority for another person or a trustee organisation to legally manage your assets and financial affairs if you are unable to do so. 
• A power of attorney can only deal with property and financial matters. 
• There are two types of power of attorney. These are ordinary and enduring powers of attorney. 
• With an ordinary power of attorney you give the power to someone for a defined period of time (such as if you are overseas on a long-term holiday) or to act in a particular capacity (such as on the purchase of a particular property on your behalf, or to act for you generally in all matters at all times. An ordinary power of attorney ceases to be effective when you lack capacity to act for yourself. It may be revoked at any time.
• An enduring power continues even after you have lost capacity. This means your enduring power of attorney will still be able to manage your affairs if you start to suffer from dementia or are otherwise incapacitated.

Question

I have a partner and would like to leave her either a lump sum amount or an annuity in my will. Can you please explain any problems associated with either of these options?

Answer

• Annuities (also referred to as income streams) are an attractive option where a testator wants to provide for a beneficiary but does not want to give them a large lump sum. 
• An annuity may be used where the beneficiary needs a regular source of income but may be frivolous with a lump sum for example a young adult or someone unaccustomed to handling large sums of money. 
• An annuity may also be used where a partner is to be provided for in life and when they die the remaining funds are to go to a different beneficiary such as a child from a previous relationship.
• It is important to note that annuities complicate the administration of an estate. This of course will increase the costs of administration such as adding to accountancy and legal costs. 
• An annuity may also affect your partner’s ability to claim a pension after you die and there may be taxation implications. 
• You would also need to ensure that your executors have the right powers under your will to purchase a commercial annuity if that is the type of annuity you are considering.
• With an annuity that is paid from a nominated fund in your estate you will need to ensure that it does not conflict with the distribution of the residue of your estate. 
• You should also ensure that the annuity returns a rate that you expect as commercial annuities often give a lower rate of interest than other investments.
• A lump sum payment is a less complicated option. It gives the beneficiary freedom to use the funds when and where they like. 
• A lump sum releases the estate and your executors and trustees from long-term commitments. This is a substantial cost saving to the estate especially if your executor or trustee is a corporate company that charges a fee for their services.
• A one-off inheritance payment that will not be repeated, cannot be reasonably predicted and does not represent payment for services is exempt from the income test and asset test in relation to eligibility for a pension.
• However the way that money is used may affect either the income test or asset test. 
• For example if the money is used to pay off a beneficiary’s mortgage over their family home it will not affect the asset test but if the money is used to purchase an expensive artwork or income producing asset then it will affect the asset and income tests. 
• This may detrimentally affect your partner’s eligibility for a pension.
• It is essential that you seek financial and legal advice before you decide which option to take. 
• There are many different ways to achieve want you want and any decision must be tailored to your specific circumstances.
• Answer 
• Usually a court will only grant an extension where there are extraordinary circumstances. 
• You would need to show reasons that are satisfactory to the court for not having made the claim within the time allowed by the family provision legislation. 
• The court will weigh up whether the named beneficiaries will be unacceptably prejudiced by allowing you to make a late application. 
• It will also take into consideration whether there has been any unfair conduct by any party in relation to the delay.

Question

I was speaking to my friend yesterday and she told me that she has a living will in place to ensure that her best interests are protected if she was to lose her decision making capacity. She told me I should also get one as I have started becoming forgetful. What is a living will? 

Answer

• A living will is a term that is gaining popularity in Australia. However in Australia a living will is known as an ‘enduring power of attorney’ or ‘appointment of an enduring guardian.’ The names of these documents tend to change depending on the state or territory.
• For example in some states they are known as ‘enduring power of attorney (financial)’ and ‘enduring power of attorney (medical).’
• Powers relating to medical treatment and financial affairs are usually separated into two distinct documents. 
• Each document gives powers to a person or group of people (the attorney or attorneys) to be able to make decisions on your behalf when you are no longer in a position to make decisions for yourself for example due to accident or illness.
• The instructions include what is to happen to you in relation to:
• medical treatment; 
• quality of life;
• prolonging life;
• your financial affairs; and
• management of your assets.
• The word ‘enduring’ means that its power continues after the appointer has lost the ability to make their own decisions.
• The document may be drafted so that multiple attorneys must act together or may act individually.
• It is possible to draft some restrictions to the powers however as there are so many variables in life the directions and powers cannot be too specific. For that reason it is essential that the person you appoint as your attorney is trustworthy and responsible.

Question

I have a child with an intellectual impairment who I would not trust to manage his inheritance after I die. I want to provide for his education, living expenses and secure his future. What can I do to safeguard his inheritance?

Answer

• A protective trust is a good way of protecting your child’s inheritance. It may be set up while you are alive or when you die for example through a testamentary trust that is created by your will. 
• A trust is a legal structure through which trust property is owned by the trustee of the trust. The trustee may be:
• a single person;
• a group of people; or 
• a company acting as a corporate trustee. 
• The trustee has a duty to look after the trust property and make it available or invest it as necessary for the benefit of the beneficiary of the trust such as your child.
• The terms of the trust deed if created during your life or the will if it is a testamentary trust dictate how the assets of the trust are to be managed by the trustee and the powers the trustee has to manage those assets. 
• Usually the trustee invests the trust property to generate a regular income for the beneficiary. 
• Any funds that are remaining after the beneficiary dies will then transfer to other nominated beneficiaries.
• If at some time in the future the beneficiary will be in a position to manage their own affairs it is possible for the beneficiary to be made a trustee of the trust. Conditions that must be met for this to occur can be outlined in the trust deed or will.

Question

My partner of 5 and half years recently died. Unfortunately he did not change his will and it leaves everything to his ex wife who he did not divorce. He has nominated me as the person who is to inherit his superannuation fund though. Does this mean that his wife gets that money too?

Answer

• As a de facto partner you may have legal rights to make a family provision claim against your partner’s estate. You need to seek legal advice in relation to a claim. 
• In relation to your partner’s superannuation fund if your partner nominated you as his ‘binding death nominee’ and that nomination is valid the superannuation funds do not form part of his estate and you will receive the account balance held by the fund. The binding nomination must not have expired and you must be a person that is permitted by the rules of the superannuation fund. 
• The nomination is usually legally binding on the trustee of a superannuation fund regardless of how a person’s circumstances may have changed between the date of the nomination and the date of death. 
• However this may depend on the fund and its rules. Some superannuation trustees have discretionary powers to bypass a death nomination in circumstances where they deem it necessary such as where there is a former spouse who has dependent children and there has not been a formal property settlement.
• This is something you need to check with the particular superannuation fund.

Question

My cousin wrote his will on the back of a pizza box at a party. I was sitting next to him and he told me he was very serious about what he was doing and if something were to happen to him I should make sure that his instructions as listed on the back of the pizza box were followed. Is this legal?

Answer

• One of the rules for a valid will is that it must be written. It does not matter what it is written on just that it is written. So technically while not a good idea a will written on a pizza box may be a legally valid will. 
• There are other rules that must be complied with for the will to be valid. 
• The will must be signed by your cousin and his signature witnessed by two witnesses. 
• The will may be able to be challenged if he or the witnesses were drunk and have no recollection of creating or witnessing the will. Those witnesses may also forfeit any gift to them or their spouse under the will.
• If your cousin intends to rely on that will any appointed executors may strike other problems in the future. 
• The will should:

1. be dated; 
2. revoke any previous testamentary acts such as wills or codicils;
3. appoint at least one executor; and 
4. appoint at least one beneficiary.

• It is recommended that your cousin remake his will to ensure that it cannot be challenged and to save on expensive estate administration costs.

Question

My wife died 18 months ago so I am raising our children on my own. I want my brother and sister-in-law to look after my children if I die. How can I make this happen?

Answer

You should include a clause in your will that states that you want your brother and sister-in-law to be legal guardians of your minor children (under the age of 18 years) after your death.

• It is essential that you discuss your wishes with your brother and sister-in-law to ensure that they are willing and able to take on this responsibility.

Question

I am writing out a will and am a little bit confused about what I can or cannot dispose of under my will. What types of property or things can I dispose of under my will? 

Answer

• Any property owned by you at the date of your death may be gifted to a beneficiary or beneficiaries in your will. This may include:

1. your house;
2. an investment property; 
3. a motor vehicle; 
4. jewellery; 
5. artwork; 
6. collectibles; 
7. your personal effects; 
8. cash savings; and 
9. shares.

• Property which cannot be gifted by a will includes:

1. assets owned by a company;
2. property held by a trust;
3. property owned as a joint tenant with another or others; and
4. superannuation funds and life insurance which are subject to a valid binding death nomination.

Question

My grandmother made a will 8 years ago but she wants to change it so she leaves her jewellery to my sister and me. We are afraid that our cousins may say that she did not know what she was doing as some of them think she is not with it anymore. We don’t want any trouble in the family.

Answer

• As there may be some question about your grandmother’s capacity if this is the only change that she wants to make to her will the safest option is to create what is called a ‘codicil.’ 
• A codicil is a side document that does not revoke former testamentary documents such as her current will. 
• It may be used to either alter or add to the will. 
• Assuming your grandmother had testamentary capacity when she made her will 8 years ago a challenge to her will may only succeed in invalidating the codicil.
• She could also see her doctor to get a letter written confirming her current testamentary capacity and store this letter with the codicil and the will. 

Question

I married a woman who already had children. I am very fond of her children and love them as my own. I want to make sure that when I die my estate is divided among my own biological children and my stepchildren.

Answer

• The law is unclear on this issue. There are cases in NSW that suggest stepchildren are included in the definition of your children. However if your biological children contest your will then your stepchildren would need to prove their right to inherit in the courts. This can be a very expensive and stressful process for everyone.
• If you wish to include stepchildren as beneficiaries it is best to make your intentions clear by naming them specifically or including a general clause stating that any reference to your children also includes stepchildren.

Question

I was looking through the will information sheet and came across two words – testator and testatrix. I am not sure what I am. Are there are differences between the two? 

Answer

• They are essentially the same except one is male (testator) and the other is female (testatrix). 
• This is a person who creates a will. 
• In modern usage ‘testator’ is used for both males and females.

Question

I made a will 7 years ago. I recently got married to my girlfriend of 10 years. I don’t want to change anything in my will as my wife is already listed as a beneficiary under the will. Do I have to make a new will just because I am now married? 

Answer

• Yes. Marriage revokes any existing testamentary acts such as a will or a codicil. 
• The only exception to this rule is where the will includes a clause that it is made in contemplation of your marriage.
• If your will won't change this just means that it will be simple to create a new will as you can use the content from your old will. You may still wish to engage a lawyer to assist with the witnessing and other formalities.

Question

My wife and I made wills to leave our estate to our children and our grandchildren. Our wills leave specific gifts to our grandchildren but our family is still growing. Do we need to update our wills each time another grandchild is born?

Answer

• That depends on how your wills are drafted. 
• If your wills name specific grandchildren then any grandchildren not named, meaning those born after your wills were written, will not inherit anything from your estates. 
• However if your wills were drafted so that your grandchildren as a class inherit equally from your estate then it is not necessary to update your wills each time an additional grandchild is born.

Question

Can a will made and executed in Australia cover testator’s overseas assets? 

Answer

• Technically yes. Your Australian will can deal with assets in other countries. 
• However other countries have different inheritance rules to ours so an Australian will may be invalid in certain countries. 
• It is best to seek legal advice in the country where the asset is held. It may be necessary to create an Australian will that specifically excludes overseas assets and another will to be made in the country where the asset is held.